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Federal Communications Commission DA 16-1463
Before the
Federal Communications Commission
Washington, DC 20554
In the Matter of
Essex Telcom, Inc.
)
)
)
)
)
)
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File No.: EB-SED-16-00022830
1
Acct. No.: 201732100002
FRN: 0008317661
ORDER
Adopted: December 30, 2016 Released: December 30, 2016
By the Chief Enforcement Bureau:
1. The Enforcement Bureau (Bureau) of the Federal Communications Commission
(Commission) has entered into a Consent Decree to resolve its investigation into whether Essex Telcom,
Inc. (Essex) operated station WQJA669 on unauthorized frequencies in the 3.5 GHz Band. These laws
ensure that devices that emit radio frequency radiation comply with the Commission’s technical
requirements and do not interfere with authorized communications. To settle this matter, Essex admits
that it operated station WQJA669 on unauthorized frequencies from April 14, 2016 until August 17,
2016, will implement a compliance plan, and will pay a $28,800 civil penalty.
2. After reviewing the terms of the Consent Decree and evaluating the facts before us, we
find that the public interest would be served by adopting the Consent Decree and terminating the
referenced investigation regarding Essex’s compliance with Section 301 of the Communications Act of
1934, as amended (Act),
2
and Section 1.903(a) of the Commission’s rules (Rules).
3
3. In the absence of material new evidence relating to this matter, we do not set for hearing
the question of Essex’s basic qualifications to hold or obtain any Commission license or authorization.
4
4. Accordingly, IT IS ORDERED that, pursuant to Section 4(i) of the Act
5
and the
authority delegated by Sections 0.111 and 0.311 of the Rules,
6
the attached Consent Decree IS
ADOPTED and its terms incorporated by reference.
5. IT IS FURTHER ORDERED that the above-captioned matter IS TERMINATED.
6. IT IS FURTHER ORDERED that a copy of this Order and Consent Decree shall be
sent by first class mail and certified mail, return receipt requested, to Mr. Jeff Kohler, Executive Vice
1
The investigation began under File No. EB-SED-16-00022736 and was subsequently assigned File No. EB-SED-
16-00022830.
2
47 U.S.C. § 301.
3
47 CFR § 1.903(a).
4
See 47 CFR § 1.93(b).
5
47 U.S.C. § 154(i).
6
47 CFR §§ 0.111, 0.311.
Federal Communications Commission DA 16-1463
2
President and Chief Development Officer, Essex Telcom, Inc., 61 Inverness Drive East, Suite 250,
Englewood, Colorado, 80112, and to Stephen E. Coran, Esq., Lerman Senter, PLLC, 2001, L Street,
N.W., Suite 400, Washington, D.C. 20036.
FEDERAL COMMUNICATIONS COMMISSION
Travis LeBlanc
Chief
Enforcement Bureau
Federal Communications Commission DA 16-1463
Before the
Federal Communications Commission
Washington, DC 20554
In the Matter of
Essex Telcom, Inc.
)
)
)
)
)
)
)
File No.: EB-SED-16-00022830
Acct. No.: 201732100002
FRN: 0008317661
CONSENT DECREE
1. The Enforcement Bureau of the Federal Communications Commission and Essex
Telcom, Inc., by their authorized representatives, hereby enter into this Consent Decree for the purpose of
terminating the Enforcement Bureau’s investigation into whether Essex Telcom, Inc. violated Section 301
of the Communications Act of 1934, as amended,
1
and Section 1.903(a) of the Commission’s rules
2
in
connection with its operation of Station WQJA669 on unauthorized frequencies.
I. DEFINITIONS
2. For the purposes of this Consent Decree, the following definitions shall apply:
(a) “Act” means the Communications Act of 1934, as amended.
3
(b) “Adopting Order” means an order of the Bureau adopting the terms of this Consent
Decree without change, addition, deletion, or modification.
(c) “Bureau” means the Enforcement Bureau of the Federal Communications
Commission.
(d) “Commission” and “FCC” mean the Federal Communications Commission and all
of its bureaus and offices.
(e) “Communications Laws” means collectively, the Act, the Rules, and the published
and promulgated orders and decisions of the Commission to which Essex is subject
by virtue of its business activities, including but not limited to the Licensing Rules.
(f) “Compliance Plan” means the compliance obligations, program, and procedures
described in this Consent Decree at paragraph 13.
(g) “Covered Employees” means all employees and agents of Essex who perform, or
supervise, oversee, or manage the performance of, duties that relate to Essex’s
responsibilities under the Communications Laws, including the Licensing Rules.
(h) “Effective Date” means the date by which both the Bureau and Essex have signed
the Consent Decree.
(i) “Essex” means Essex Telcom, Inc. and its affiliates, subsidiaries, predecessors-in-
interest, and successors-in-interest.
1
47 U.S.C. § 301.
2
47 CFR § 1.903(a).
3
47 U.S.C. § 151 et seq.
Federal Communications Commission DA 16-1463
2
(j) “Investigation” means the investigation commenced by the Bureau in File No. EB-
SED-16-00022736
4
regarding whether Essex violated the Licensing Rules.
(k) “Licensing Rules” means Section 301 of the Act, and Section 1.903(a) of the Rules
and other provisions of the Act, the Rules, and Commission orders that prohibit the
use or operation of a wireless radio station in a manner inconsistent with its licensed
parameters.
(l) “Operating Procedures” means the standard internal operating procedures and
compliance policies established by Essex to implement the Compliance Plan.
(m) “Parties” means Essex and the Bureau, each of which is a “Party.”
(n) “Rules” means the Commission’s regulations found in Title 47 of the Code of
Federal Regulations.
(o) “Station” means Station WQJA669.
II. BACKGROUND
3. Section 301 of the Act and Section 1.903(a) of the Rules prohibit the use or operation of
any apparatus for the transmission of energy or communications or signals by radio except under, and in
accordance with, a Commission-granted authorization.
5
4. In July 2016, the Enforcement Bureau’s Spectrum Enforcement Division (Division)
received information from the Wireless Telecommunications Bureau that Essex was operating on
frequencies in the 3550-3650 MHz band, a band not yet available for commercial use.
6
The Division
reviewed Commission records and found that Essex had recently acquired and held a license for the
Station, which was authorized to operate in the 3650-3700 MHz band.
7
On July 25, 2016, Division staff
contacted Essex, requesting Essex to cease operations on unauthorized frequencies immediately. On July
28, 2016, Jeff Kohler of JAB Wireless, Inc. (JAB Wireless), the parent company of Essex, submitted a
Declaration stating that immediately upon speaking with Commission staff, Essex began to migrate some
customers and disconnect others and in less than 24 hours had ceased transmitting on the 3550-3650 MHz
frequencies.
8
5. The Kohler Declaration further explained that, in May 2016, JAB Wireless realized that
“certain customers were receiving fixed broadband service” from unauthorized frequencies.
9
JAB
Wireless stated that when it “understood the gravity of the situation,” Essex “took immediate steps” to
cease operations on the unauthorized frequencies, and had stopped such operations on July 26, 2016.
10
6. An Enforcement Bureau Field Office Agent (Field Agent) conducted an inspection
during the period August 15-17, 2016, and determined that one transmitter was still operating on
4
The investigation began under File No. EB-SED-16-00022736 and was subsequently assigned File No. EB-SED-
16-00022830.
5
47 U.S.C. § 301; 47 CFR § 1.903(a).
6
See Amendment of the Commission’s Rules with Regard to Commercial Operations in the 3550-3650 MHz Band,
Report and Order and Second Further Notice of Proposed Rulemaking, 30 FCC Rcd 3959 (2015).
7
See ULS File No. 0007207276.
8
See Declaration of Jeff Kohler, Co-Founder and Chief Development Officer for JAB Wireless, Inc., (July 28,
2016) (on file in EB-SED-16-00022830) (Kohler Declaration).
9
Kohler Declaration at 2.
10
See Declaration of Martin Garrity, Vice President of Network Planning, Engineering and Construction for JAB
Wireless, Inc. (July 28, 2016) (on file in EB-SED-16-00022830).
Federal Communications Commission DA 16-1463
3
unauthorized frequencies. On August 17, 2016, the Field Agent informed Essex of this transmission and
Essex stopped operations on the unauthorized frequencies on the same date.
11
In response to an inquiry
from the Enforcement Bureau,
12
Essex indicated that it had operated on unauthorized frequencies at nine
locations.
13
Subsequently, Essex and the Bureau engaged in settlement negotiations. The Bureau and
Essex agree to the following terms and conditions of settlement and hereby enter into this Consent Decree
as provided herein.
III. TERMS OF AGREEMENT
7. Adopting Order. The provisions of this Consent Decree shall be incorporated by the
Bureau in an Adopting Order.
8. Jurisdiction. Essex agrees that the Bureau has jurisdiction over it and the matters
contained in this Consent Decree and has the authority to enter into and adopt this Consent Decree.
9. Effective Date; Violations. The Parties agree that this Consent Decree shall become
effective on the Effective Date as defined herein. As of the Effective Date, the Parties agree that this
Consent Decree shall have the same force and effect as any other order of the Commission.
10. Termination of Investigation. In express reliance on the covenants and representations
in this Consent Decree and to avoid further expenditure of public resources, the Bureau agrees to
terminate the Investigation. In consideration for the termination of the Investigation, Essex agrees to the
terms, conditions, and procedures contained herein. The Bureau further agrees that, in the absence of new
material evidence, it will not use the facts developed in the Investigation through the Effective Date, or
the existence of this Consent Decree, to institute, on its own motion, any new proceeding, formal or
informal, or take any action on its own motion against Essex concerning the matters that were the subject
of the Investigation. The Bureau also agrees that, in the absence of new material evidence, it will not use
the facts developed in the Investigation through the Effective Date, or the existence of this Consent
Decree, to institute on its own motion any proceeding, formal or informal, or to set for hearing the
question of Essex’s basic qualifications to be a Commission licensee or hold Commission licenses or
authorizations.
14
11. Admission of Liability. Essex admits for the purpose of this Consent Decree and for
Commission civil enforcement purposes, and in express reliance on the provisions of paragraph 10 herein,
that its operation on unauthorized frequencies violated the Licensing Rules.
12. Compliance Officer. Within thirty (30) calendar days after the Effective Date, Essex
shall designate a senior corporate manager with the requisite corporate and organizational authority to
serve as a Compliance Officer and to discharge the duties set forth below. The person designated as the
Compliance Officer shall be responsible for developing, implementing, and administering the Compliance
Plan and ensuring that Essex complies with the terms and conditions of the Compliance Plan and this
Consent Decree. In addition to the general knowledge of the Communications Laws necessary to
discharge his or her duties under this Consent Decree, the Compliance Officer shall have specific
knowledge of the Licensing Rules prior to assuming his/her duties.
11
See Supplemental Declaration of Martin Garrity, Vice President of Deployment and Network Operations for JAB
Wireless, Inc. (Aug. 18, 2016) (on file in EB-SED-16-00022830).
12
See E-mail from Kathy Harvey, Attorney Advisor, Spectrum Enforcement Division, FCC Enforcement Bureau, to
Doug VanCura, Vice President Network Operations, Essex Telcom, Inc. (Oct. 11, 2016) (on file in EB-SED-16-
00022830).
13
See Declaration of Martin Garrity, Vice President of Network Deployment and Field Operations for JAB
Wireless, Inc. (Oct. 20, 2016) (on file in EB-SED-16-00022830).
14
See 47 CFR § 1.93(b).
Federal Communications Commission DA 16-1463
4
13. Compliance Plan. For purposes of settling the matters set forth herein, Essex agrees that
it shall, within sixty (60) calendar days after the Effective Date, develop and implement a Compliance
Plan designed to ensure future compliance with the Communications Laws and with the terms and
conditions of this Consent Decree.
15
With respect to the Licensing Rules, Essex will implement, at a
minimum, the following procedures:
(a) Operating Procedures. Within thirty (30) calendar days after the Effective Date,
Essex shall establish Operating Procedures that all Covered Employees must follow
to help ensure Essex’s compliance with the Licensing Rules. Essex’s Operating
Procedures shall include internal procedures and policies specifically designed to
ensure that it operates its stations in accordance with their authorized parameters.
Essex shall also develop a Compliance Checklist that describes the steps that a
Covered Employee must follow to ensure compliance with the Licensing Rules.
(b) Compliance Manual. Within sixty (60) calendar days after the Effective Date, the
Compliance Officer shall develop and distribute a Compliance Manual to all
Covered Employees. The Compliance Manual shall explain the Licensing Rules
and set forth the Operating Procedures that Covered Employees shall follow to help
ensure Essex’s compliance with the Licensing Rules. Essex shall periodically
review and revise the Compliance Manual as necessary to ensure that the
information set forth therein remains current and accurate. Essex shall distribute
any revisions to the Compliance Manual promptly to all Covered Employees.
(c) Compliance Training Program. Essex shall establish and implement a
Compliance Training Program on compliance with the Licensing Rules and the
Operating Procedures. As part of the Compliance Training Program, Covered
Employees shall be advised of Essex’s obligation to report any noncompliance with
the Licensing Rules under paragraph 14 of this Consent Decree and shall be
instructed on how to disclose noncompliance to the Compliance Officer. All
Covered Employees shall be trained pursuant to the Compliance Training Program
within sixty (60) calendar days after the Effective Date, except that any person who
becomes a Covered Employee at any time after the initial Compliance Training
Program shall be trained within thirty (30) calendar days after the date such person
becomes a Covered Employee. Essex shall repeat compliance training on an annual
basis, and shall periodically review and revise the Compliance Training Program as
necessary to ensure that it remains current and complete and to enhance its
effectiveness.
14. Reporting Noncompliance. Essex shall report any noncompliance with the Licensing
Rules and with the terms and conditions of this Consent Decree within fifteen (15) calendar days after
discovery of such noncompliance. Such reports shall include a detailed explanation of: (i) each instance
of noncompliance; (ii) the steps that Essex has taken or will take to remedy such noncompliance; (iii) the
schedule on which such remedial actions will be taken; and (iv) the steps that Essex has taken or will take
to prevent the recurrence of any such noncompliance. All reports of noncompliance shall be submitted to
the Chief, Spectrum Enforcement Division, Enforcement Bureau, Federal Communications Commission,
445 12
th
Street, SW, Rm. 4-C224, Washington, DC 20554, with copies submitted electronically to Kathy
Harvey at Kathy.Harvey@fcc.gov and JoAnn Lucanik at JoAnn.Lucanik@fcc.gov.
15
Essex represents that it has comprehensive organizational structures, plans, and procedures in place that are
intended to ensure compliance with the Communications Laws. This Consent Decree does not require new
organizational structures, plans, or procedures except as necessary to implement paragraphs 12-15 of this Consent
Decree, nor does it require application of the Compliance Plan to Covered Employees with no responsibilities for
compliance with the Licensing Rules.
Federal Communications Commission DA 16-1463
5
15. Compliance Reports. Essex shall file compliance reports with the Commission ninety
(90) calendar days after the Effective Date, twelve (12) months after the Effective Date, twenty-four (24)
months after the Effective Date, and thirty-six (36) months after the Effective Date.
(a) Each Compliance Report shall include a detailed description of Essex’s efforts
during the relevant period to comply with the terms and conditions of this Consent
Decree and the Licensing Rules. In addition, each Compliance Report shall include
a certification by the Compliance Officer, as an agent of and on behalf of Essex,
stating that the Compliance Officer has personal knowledge that Essex: (i) has
established and implemented the Compliance Plan; (ii) has utilized the Operating
Procedures since the implementation of the Compliance Plan; and (iii) is not aware
of any instances of noncompliance with the terms and conditions of this Consent
Decree, including the reporting obligations set forth in paragraph 14 of this Consent
Decree.
(b) The Compliance Officer’s certification shall be accompanied by a statement
explaining the basis for such certification and shall comply with Section 1.16 of the
Rules and be subscribed to as true under penalty of perjury in substantially the form
set forth therein.
16
(c) If the Compliance Officer cannot provide the requisite certification, the Compliance
Officer, as an agent of and on behalf of Essex, shall provide the Commission with a
detailed explanation of the reason(s) why and describe fully: (i) each instance of
noncompliance; (ii) the steps that Essex has taken or will take to remedy such
noncompliance, including the schedule on which proposed remedial actions will be
taken; and (iii) the steps that Essex has taken or will take to prevent the recurrence
of any such noncompliance, including the schedule on which such preventive action
will be taken.
(d) All Compliance Reports shall be submitted to the Chief, Spectrum Enforcement
Division, Enforcement Bureau, Federal Communications Commission, 445 12
th
Street, SW, Rm. 4-C224, Washington, DC 20554, with copies submitted
electronically to Kathy Harvey at Kathy.Harvey@fcc.gov and JoAnn Lucanik at
JoAnn.Lucanik@fcc.gov.
16. Termination Date. Unless stated otherwise, the requirements set forth in paragraphs 12
through 15 of this Consent Decree shall expire thirty-six (36) months after the Effective Date.
17. Section 208 Complaints; Subsequent Investigations. Nothing in this Consent Decree
shall prevent the Commission or its delegated authority from adjudicating complaints filed pursuant to
Section 208 of the Act
17
against Essex or its affiliates for alleged violations of the Act, or for any other
type of alleged misconduct, regardless of when such misconduct took place. The Commission’s
adjudication of any such complaint will be based solely on the record developed in that proceeding.
Except as expressly provided in this Consent Decree, this Consent Decree shall not prevent the
Commission from investigating new evidence of noncompliance by Essex with the Communications
Laws.
18. Civil Penalty. Essex will pay a civil penalty to the United States Treasury in the amount
Twenty-Eight Thousand and Eight Hundred Dollars ($28,800) within thirty (30) calendar days after the
Effective Date. Essex shall send electronic notification of payment to Kathy Harvey at
Kathy.Harvey@fcc.gov, JoAnn Lucanik at JoAnn.Lucanik@fcc.gov and Samantha Peoples at
16
47 CFR § 1.16.
17
47 U.S.C. § 208.
Federal Communications Commission DA 16-1463
6
Sam.Peoples@fcc.gov on the date said payment is made. The payment must be made by check or similar
instrument, wire transfer, or credit card, and must include the Account Number and FRN referenced
above. Regardless of the form of payment, a completed FCC Form 159 (Remittance Advice) must be
submitted.
18
When completing the FCC Form 159, enter the Account Number in block number 23A (call
sign/other ID) and enter the letters “FORF” in block number 24A (payment type code). Below are
additional instructions that should be followed based on the form of payment selected:
? Payment by check or money order must be made payable to the order of the Federal
Communications Commission. Such payments (along with the completed Form 159) must be
mailed to Federal Communications Commission, P.O. Box 979088, St. Louis, MO 63197-
9000, or sent via overnight mail to U.S. Bank – Government Lockbox #979088,
SL-MO-C2-GL, 1005 Convention Plaza, St. Louis, MO 63101.
? Payment by wire transfer must be made to ABA Number 021030004, receiving bank
TREAS/NYC, and Account Number 27000001. To complete the wire transfer and ensure
appropriate crediting of the wired funds, a completed Form 159 must be faxed to U.S. Bank
at (314) 418-4232 on the same business day the wire transfer is initiated.
? Payment by credit card must be made by providing the required credit card information on
FCC Form 159 and signing and dating the Form 159 to authorize the credit card payment.
The completed Form 159 must then be mailed to Federal Communications Commission, P.O.
Box 979088, St. Louis, MO 63197-9000, or sent via overnight mail to U.S. Bank –
Government Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St. Louis, MO
63101.
Questions regarding payment procedures should be addressed to the Financial Operations Group
Help Desk by phone, 1-877-480-3201, or by e-mail, ARINQUIRIES@fcc.gov.
19. Waivers. As of the Effective Date, Essex waives any and all rights it may have to seek
administrative or judicial reconsideration, review, appeal or stay, or to otherwise challenge or contest the
validity of this Consent Decree and the Adopting Order. Essex shall retain the right to challenge
Commission interpretation of the Consent Decree or any terms contained herein. If either Party (or the
United States on behalf of the Commission) brings a judicial action to enforce the terms of the Consent
Decree or the Adopting Order, neither Essex nor the Commission shall contest the validity of the Consent
Decree or the Adopting Order, and Essex shall waive any statutory right to a trial de novo. Essex hereby
agrees to waive any claims it may otherwise have under the Equal Access to Justice Act
19
relating to the
matters addressed in this Consent Decree.
20. Severability. The Parties agree that if any of the provisions of the Consent Decree shall
be held unenforceable by any court of competent jurisdiction, such unenforceability shall not render
unenforceable the entire Consent Decree, but rather the entire Consent Decree shall be construed as if not
containing the particular unenforceable provision or provisions, and the rights and obligations of the
Parties shall be construed and enforced accordingly.
21. Invalidity. In the event that this Consent Decree in its entirety is rendered invalid by any
court of competent jurisdiction, it shall become null and void and may not be used in any manner in any
legal proceeding.
22. Subsequent Rule or Order. The Parties agree that if any provision of the Consent
Decree conflicts with any subsequent Rule or Order adopted by the Commission (except an Order
18
An FCC Form 159 and detailed instructions for completing the form may be obtained at
http://www.fcc.gov/Forms/Form159/159.pdf.
19
See 5 U.S.C. § 504; 47 CFR §§ 1.1501–1.1530.
Federal Communications Commission DA 16-1463
7
specifically intended to revise the terms of this Consent Decree to which Essex does not expressly
consent) that provision will be superseded by such Rule or Order.
23. Successors and Assigns. Essex agrees that the provisions of this Consent Decree shall
be binding on its successors, assigns, and transferees.
24. Final Settlement. The Parties agree and acknowledge that this Consent Decree shall
constitute a final settlement between the Parties with respect to the Investigation.
25. Modifications. This Consent Decree cannot be modified without the advance written
consent of both Parties.
26. Paragraph Headings. The headings of the paragraphs in this Consent Decree are
inserted for convenience only and are not intended to affect the meaning or interpretation of this Consent
Decree.
27. Authorized Representative. Each Party represents and warrants to the other that it has
full power and authority to enter into this Consent Decree. Each person signing this Consent Decree on
behalf of a Party hereby represents that he or she is fully authorized by the Party to execute this Consent
Decree and to bind the Party to its terms and conditions.
28. Counterparts. This Consent Decree may be signed in counterpart (including
electronically or by facsimile). Each counterpart, when executed and delivered, shall be an original, and
all of the counterparts together shall constitute one and the same fully executed instrument.
________________________________
Travis LeBlanc
Chief
Enforcement Bureau
________________________________
Date
________________________________
Jeff Kohler
Executive Vice President and Chief Development Officer
Essex Telcom, Inc.
________________________________
Date